People v. Edwards

Page 652

172 Cal.Rptr. 652

117 Cal.App.3d 436

The PEOPLE, Plaintiff and Respondent, v. Leonard EDWARDS, Defendant and Appellant.

Nos. 4278, 4279.

Court of Appeal, Fifth District, California.

March 27, 1981.

Quin Denvir, State Public Defender, Harvey R. Zall, Deputy State Public Defender, Sacramento, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Anthony L. Dicce, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

ALLEN, ^* Associate Justice.

Appellant was convicted by a jury of six counts of robbery. The jury also found true a use allegation (Pen.Code, § 12022.5) as to each of the six counts. Additionally, appellant was charged in another information with one count of robbery and a use allegation (Pen.Code, § 12022.5). The jury found him guilty of the robbery count and made a true finding on the use allegation.

For purposes of sentencing, both matters were consolidated. Appellant now appeals from the judgment imposed, claiming various sentencing errors.

STATEMENT OF FACTS

Counts I and II

On July 16, 1978, appellant entered the Fresno West Bait Shop and pointed a pistol at the clerk, Marvin Stanley Holley (Holley). Holley was talking on the telephone at the time, and appellant told Holley if he did not hang up the phone appellant would blow out the brains of Holley's son Michael Holley (Michael), who was behind the counter. Appellant was pointing the gun at Holley and also at Michael. Appellant threatened to blow Michael's brains out if he didn't turn around and face down to the floor. Holley heard appellant walk out and he got up. Appellant came back and said "I told you I was going to blow your brains out. Get back on the floor. This is exactly what I mean." Holley then got back down on the floor. Appellant took approximately $237.10 from Holley's pockets and Michael's car keys.

Count III

On July 15, 1978, appellant entered the store known as Ace Lawnmower Sales & Service, pointed a gun at the owner, Anthony Schempre (Schempre), and told him to get on the floor. Appellant told Schempre not to get up or he would blow his brains out. Between $150 and $200 was taken from the cash register by appellant.

Counts IV, V and VI

On July 13, 1978, appellant and an accomplice approached Joseph Allen Velasquez (Velasquez), Robert Frank Encinas (Encinas) and Gary Martinez (Martinez) and asked them if they wanted to buy some TV's or stereos. Appellant advised them that some of the items were stolen.

They all met by arrangement the next day at the Bigby Villa Apartments to view the merchandise. Appellant drew a gun and pointed it at everybody. Several times appellant placed the gun against Encinas' head. All three, Velasquez, Encinas and Martinez, had their wallets taken from them by an accomplice. Property was also taken from the victims' cars. Eventually appellant told them to run away, and as they did so, a shot was fired.

The final robbery count, which was consolidated for sentencing with the above counts, occurred on July 17, 1978. On that day, appellant and one Davy Crockett entered the Langendorf Bakery. Appellant pointed a gun at the clerk, Jessie May McCrain and ordered her to "freeze." Appellant ordered McCrain to lie on the floor while Crockett emptied the contents of the cash register into a paper bag. McCrain's purse was also taken during the robbery.

The sentences imposed on the various counts were as follows:

Count I (information No. 236187-1, robbery of Marvin Holley), the upper term of four years with an additional two years for the Penal Code section 12022.5 enhancement running consecutive to the upper term for an aggregate term of six years.

Count II (information No. 236187-1, robbery of Michael Holley), the middle term of three years with an additional two years for the Penal Code section 12022.5 enhancement running consecutive to the middle term for a principal term of five years, the principal term to be subordinate to and to run concurrent with count I.

Count III (information No. 236187-1, robbery of Schempre), the middle term of three years with an additional two years for the Penal Code section 12022.5 enhancement running consecutive to the middle term for a principal term of five years, the principal term to be subordinate to and to run consecutive to count I. Three and one-third years of the principal term were stayed, leaving a principal term of one and two-thirds years to run consecutive to count I.

Count IV (information No. 236187-1, robbery of Encinas), the middle term of three years with an additional two years for the Penal Code section 12022.5 enhancement running consecutive to the middle term for a principal term of five years, the principal term to be subordinate to and to run consecutive to count I. Three and one-third years of the principal term were stayed, leaving a principal term of one and two-thirds years to run consecutive to count I.

Count V (information No. 236187-1, robbery of Martinez), the middle term of three years with an additional two years for the Penal Code section 12022.5 enhancement running consecutive to the middle term for a principal term of five years, the principal term to be subordinate to and to run concurrent to count I.

Count VI (information No. 236187-1, robbery of Velasquez), the middle term of three years with an additional two years for the Penal Code section 12022.5 enhancement running consecutive to the middle term for a principal term of five years, the principal term to be subordinate to and to run concurrent to count I.

Information No. 236188-9 (robbery of McCrain), the middle term of three years with an additional two years for the Penal Code section 12022.5 enhancement, running consecutive to the middle term for a principal term of five years, the principal term to be subordinate to and to run consecutive to count I. Three and one-third years of the principal term were stayed, leaving a principal term of one and two-thirds years to run consecutive to count I.

The court also sentenced appellant on a County of Madera conviction (burglary), which was deemed a subordinate term to run consecutive to the term imposed for count I.

DISCUSSION

I Factors in Aggravation

The court sentenced appellant to state prison for the upper term of four years as a result of appellant's conviction on count I. The trial court sentenced appellant to an additional two years in state prison on the Penal Code section 12022.5 enhancement, this term to be consecutive to the four years imposed in count I.

Appellant contends that two of the factors used in the imposition of the upper term for the robbery of Marvin Holley in count I were improper.

In imposing the upper term on count I, the court gave as its reasons: "Defendant threatened the victim with violent actions; he was a very active participant in the robbery; and he was on parole from CRC at the time the robbery was committed." Appellant asserts that the threat of violent action and being a very active participant in the robbery were not proper factors in aggravation.

In People v. Roberson (1978) 81 Cal.App.3d 890, 893, 146 Cal.Rptr. 777, it was held that where a threat of violence could only be based on a defendant's use of a weapon in committing the crime, then this constituted an improper dual use of facts to both enhance (Pen.Code, § 12022.5) and aggravate. What distinguishes the instant case from Roberson is a direct verbal threat made by appellant in addition to his use of a gun.

In People v. Davis (1980) 103 Cal.App.3d 270, 280, 163 Cal.Rptr. 22, the court rejected a similar argument to the one appellant has raised in the instant case. In Davis, defendant urged that the trial court's reliance upon the "violence of the act" referred to his use of a gun and consequently was improperly used twice for both aggravation and enhancement under Penal Code section 12022.5. The court held "His urging is unpersuasive, since the circumstances surrounding the attempted robbery, highlighted by defendant's direct verbal threat of killing Williams, amply justify the trial court's consideration of 'violence of the act' as a circumstance in support of aggravation." See also People v. Childs (1980) 112 Cal.App.3d 374, 387, 169 Cal.Rptr. 183.

In the instant case, just as in People v. Davis, supra, appellant made a direct verbal threat to kill Marvin Holley. It should also be noted that the trial court stated that it was not using the use of the weapon as a circumstance in aggravation, indicating that the trial court was focusing on the verbal threats made by appellant, thereby avoiding the dual use of facts problem.

In sum, the sentencing court could properly use the factor that appellant threatened the victim with violent action as a factor in aggravation.

Next, appellant argues that the factor that "he was a very active participant in the robbery" is in error because appellant was the only participant in count I. We disagree. The court was only stating the obvious, in the sense that appellant was alone in committing the crime, thus he could not help but be active in its commission.

In any event, there were other factors to aggravate. Aside from the proper aggravating factors (appellant's threat and the fact that he was on parole from CRC when he committed the instant offense), it is persuasive that the court found no circumstances in mitigation. When these factors are put together, it would not seem reasonably probable that a different sentence could have been imposed in the absence of active participation. As a result, resentencing on count I is not required.

II CULBRETH AND HARVEY ERRORS

The trial court erred in imposing consecutive use enhancements on counts III and IV of information No. 236187-1, and on the offense in information No. 236188-9. (People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396; accord, People v. Stompro, 116 Cal.App.3d 289, 171 Cal.Rptr. 903....